Is 'Happy Birthday' in the public domain? Suit seeks return of license fees

A filmmaker who set out to make a documentary about the “Happy Birthday” song balked when told she would have to pay a $1,500 licensing fee for the music to be performed in her film.

Now the filmmaker’s company has filed a would-be class action that contends the song is in the public domain, the New York Times reports. The defendant, Warner/Chappell Music, claims it owns the copyright to the song through a company it acquired in 1988. The Wall Street Journal Law Blog (sub. req.) and the Hollywood Reporter also have stories.

By one estimate, Warner/Chappell collects about $2 million a year in licensing fees for the song, according to lawyer Mark Rifkin, who represents the plaintiff. The suit seeks return of licensing fees collected in the last four years.

The complaint (PDF) claims that “Happy Birthday” used a melody from another song, “Good Morning to All,” composed by two sisters, Mildred Hill and Patty Smith Hill.

The Hill sisters assigned the rights to their “Good Morning” song to a buyer whose name was associated with three different companies that renewed copyrights. Copyrights to the melody have expired or have been forfeited, the suits says.

By 1911, the public began singing “Happy Birthday,” but it’s not clear who wrote the lyrics, the suit says. The third company sought a copyright for a “Happy Birthday” song in 1935, but it covered only the piano arrangement, the suit says. The company filed subsequent copyright applications, was renamed, and was acquired by Warner/Chappell.

Any copyright that exists to “Happy Birthday” would cover only the piano arrangement, the suit alleges.

Prior coverage:

ABAJournal.com: “New copyright-free birthday song revealed after contest judged by law prof”